Exhibit 10.28
Consulting Agreement
It is agreed as of this 1st day of January, 1997, by and between Ball
Corporation (Ball) and The Cygnus Enterprise Development Corp. (Consultant),
residing at or whose principal place of business is located at XX Xxx 0000,
Xxxxxx, XX 00000, as follows:
1. Whereas, Consultant has generalized expertness in corporate management;
Whereas Ball is interested in various projects associated with the above
expertise;
Now therefore:
2. Consultant shall perform for Ball the consulting services as mutually
agreed upon from time to time, and as may be authorized from time to time
in Schedule 4, using the equipment and services contained in Schedule 5,
during the period described in Schedule 4, which by this reference are
incorporated herein.
3. Ball shall pay to Consultant and Consultant shall accept the compensation
provided for in Schedule 4.
Consultant shall submit invoices containing the following data:
a) Contract number must be listed on the invoice.
b) Invoice date
c) Dates of service
d) Days worked
e) Location and description of services
f) Signed statement certifying that the invoice is correct and just; that
it is based on time records maintained on a current basis; that payment
has not been received; and that the amount paid may become the basis
for a claim against the United States Government; and that the charges
represent Consultant's total for the dates included.
g) Itemized Expenses:
1) Date
2) Description
3) Air Transportation
4) Auto Rental
5) Personal Auto Mileage and Rate
6) Lodging
7) Business Meals itemizing when, where, what, how much, purpose and
attendees
8) Reasonable and customary expenses for meals and incidentals
9) Fees as enumerated in Sections 4.2, 4.3 and 4.4.
10) Other
11) Signed statement certifying that these expenses have been incurred
in support of the services rendered herein
h) Send invoices to Ball Corporation, 000 Xxxx Xxxxxx, X.X. Xxx 0000,
Xxxxxx, XX 00000-0000 Attn: G. A. Sissel
Expenses of $25.00 or more must be supported by original receipts or risk
non-reimbursement.
4. Consultant shall operate as, and have the status of, an independent
contractor and shall not act as or be an agent or employee of Ball. All of
the Consultant's activities will be at its own risk, and Consultant shall
not be entitled to Workers Compensation or similar benefits or other
employee benefits from Ball other than normal retirement benefits.
Consultant shall indemnify and hold Ball harmless from any and all claims,
actions, causes of action, liabilities, losses, or expenses associated with
the failure of Consultant to comply with applicable legal requirements
regarding coverage for workers compensation liability, either for itself,
its employees, or subcontractors.
Ball and Consultant shall insure that effort associated with Boards of
Director activities shall be covered by D & O insurance.
As an independent contractor, Consultant shall be solely responsible for
determining the means and methods for performing the consulting services.
Consultant shall determine the time, the place and the manner in which it
shall accomplish its services within an overall schedule in accordance with
Schedule 4. Ball shall receive only the results of Consultant's services.
Although Ball shall not control and supervise the Consultant, Ball shall
have the right to surveil the consultant's performance and to suggest
direction, but only insofar as to enable or insure satisfactory performance
in accordance with the scope of work.
Consultant shall indemnify and hold Ball harmless from any and all claims,
actions, causes of action, suits, judgments, including costs and attorney's
fees arising out of Consultant's breach of this agreement, and any
negligent or wrongful acts and/or omissions of Consultant, its employees,
subcontractors, agents, assigns and invitees.
Consultant is not entitled to unemployment insurance benefits unless
employment compensation coverage is provided by Consultant or by an
entity other than Ball. Consultant is solely responsible for reporting its
income and for paying Federal and State Income Tax on any monies paid by
Ball to Consultant pursuant to this Agreement, and Ball shall have no
obligation to withhold any amounts from such monie s to cover Federal or
State withholding obligations.
Consultant acknowledges that: (a) Ball does not require Consultant to work
exclusively for Ball, (b) Ball will not provide any training or tools
except as delineated in Schedule 5, and (c) the respective operations of
Ball and Consultant shall remain separate and distinct throughout the term
of this Agreement.
5. Consultant shall perform its consulting services with that standard of
care, skill and diligence normally provided by a professional person in the
performance of such consulting services. Consultant understands that Ball
shall rely upon the accuracy, competence and completeness of Consultant's
services in utilizing the results of such services.
6. Unless otherwise agreed by Ball in writing, only Xxxxxxx X. Xxxxx shall
perform the services specified for consulting services contained herein.
It is understood that if one of the areas of services referenced on
Schedule 4 is authorized, outside professional services may be necessary
with Consultant to be responsible for obtaining and compensating for said
services.
7. Ball shall own any concept, product or process, patentable or otherwise,
furnished to Ball by Consultant, or otherwise conceived or developed by
Consultant in the performance of this Agreement. Consultant agrees to do
all things necessary, at Ball's request and at Ball's sole cost and
expense, to obtain patents or copyrights on any processes, products or
writings conceived, developed or produced by Consultant in the performance
of this Agreement. All materials prepared or developed by Consultant
hereunder, including without limitation documents, calculations, maps,
sketches, notes, reports, data, models and samples, shall become the
property of Ball when prepared, whether delivered to Ball or not, and shall
be delivered to Ball upon request and, in any event, upon termination of
this Agreement.
8. Consultant agrees that it shall not divulge to third parties, without the
prior written consent of Ball, any information obtained from or through
Ball in connection with performance of this Agreement unless (a) as shown
by the written records of Consultant the information is lawfully known to
the Consultant on a non-confidential basis prior to obtaining it from Ball,
(b) the information is, at the time of disclosure by Consultant, then in
the public domain through no violation of this Agreement, or (c) the
information is hereafter lawfully obtained by Consultant from a third party
who did not receive it directly or indirectly from Ball.
9. Consultant represents to Ball that no part of monies paid by Ball under
this Agreement shall be directly or indirectly paid to or for the benefit
of any employee, agent or representative of any customer of Ball for an
improper purpose or to obtain a benefit.
10. This Agreement constitutes the complete understanding of the parties
associated with the work to be performed by Consultant for Ball, it may
only be modified by writing expressly identified as a modification of the
Agreement and executed by both parties, and supersedes any and all prior
oral or written communications. Any waiver by Ball of any term or
condition of this Agreement shall not constitute a continuing waiver of
such term or condition of this Agreement.
11. This Agreement shall be construed under the laws of the State of Colorado
and Consultant submits to jurisdiction in the State of Colorado.
12. To the extent permitted by law, Consultant shall indemnify and hold
harmless Ball from all costs, expenses, losses, claims and liability
arising under subsections 27(e), (f), (g) and (h) of the Office of Federal
Procurement Policy Act (the Act), codified at 41 U.S.C. 423, as Amended by
Section 814 of Public Law 101-189 and Section 815 of P.L. 101-510, and
titled "Procurement Integrity", as may be later amended and as implemented
at Section 3.104 of Federal Acquisition Regulation (codified at Chapter 1
of Title 48 of the Code of Federal Regulations), to the extent only such
costs, expenses, losses, claims and liability are caused solely or
concurrently by Consultant, if Consultant is notified promptly in writing
and given authority, information, and assistance, at Consultant's expense,
for the defense of same with counsel of Consultant's choice. Consultant
agrees to execute immediately, and re-execute at least on an annual basis,
a Certificate of Procurement Integrity, attached hereto as Schedule 1.
13. The Equal Employment Opportunity provisions attached hereto as Schedule 2
are hereby incorporated herein.
14. The rates charged by Consultant herein are as favorable as those charged
any other customer for similar work.
15. This Agreement may be terminated by either party for breach of a material
term hereof or by either party for convenience. In the event of termination
for convenience by Ball, Consultant shall be entitled to submit a final
claim for expenses incurred before termination and reasonable expenses for
contract closure.
16. Obligations contained in Provisions 3, 4, 7, 8, and 12 shall survive the
termination or expiration of this Agreement.
17. This Agreement shall supercede any other consulting agreements between the
parties and shall only be modified in writing and executed by both parties.
EXECUTED as of the date first above written.
CONSULTANT BALL CORPORATION
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By: /s/Xxxxxxx X. Xxxxx By: /s/Xxxxxx X. Xxxxxx
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Typed Name: Xxxxxxx X. Xxxxx Typed Name: Xxxxxx X. Xxxxxx
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Title: Managing Partner Title: Chairman, President & CEO
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Date: December 20, 1996 Date: December 23, 1996
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SCHEDULE 1
CERTIFICATE OF PROCUREMENT INTEGRITY
I, Xxxxxxx X. Xxxxx, the undersigned, certify:
a) That I am an independent contractual consultant to Ball Corporation.
b) That I am familiar with, and will comply with, and will not knowingly
violate, the requirements of Subsection (a) of 41 U.S.C. Section 423
as implemented in the FAR.
c) That I will report immediately to the officer or employee of the
corporate entity qualifying as a competing contractor and designate
in paragraph a), which officer or employee is or was responsible for
the bid or offer which, to the best of my knowledge or belief,
concerns a violation or possible violation of subsection (g), (h),
(I) and (j) of 41 U.S.C. Section 423 or Section 3.104 of the FAR,
occurring on or after December 1, 1990, regarding any Federal agency
procurement of property or services, during which I participated
personally and substantially in the preparation of such bid or offer
or of such modification.
I further understand that the obligations of paragraph b) and c)
apply if and when, as a consultant to, the entity designated below as
"Name of Employing Company", I participate personally and
substantially in the preparation of such bid or offer or of such
modification described in paragraph c.
Signature /s/Xxxxxxx X. Xxxxx
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Typed Name Xxxxxxx X. Xxxxx
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Title Managing Partner
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Name of Employing Company Ball Corporation
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SCHEDULE 2
EQUAL EMPLOYMENT OPPORTUNITY
A. Consultant is aware of, and is fully informed of, Consultant's obligations
under Executive Order 11246 and, where applicable, shall comply with the
requirements of such Order and all orders, rules and regulations
promulgated thereunder unless exempted therefrom.
Without limitation of the foregoing, Consultant's attention is directed to
41 CFR, Section 60-1.4, and the clause therein entitled "Equal Opportunity
Clause" which, by this reference, is incorporated herein.
B. Consultant is aware of, and is fully informed of Consultant's
responsibilities under Executive Order No 11701, "List of Job Openings for
Veterans" and, where applicable, shall comply with the requirement of such
Order, and all orders, rules and regulations promulgated thereunder unless
exempted therefrom.
Without limitation of the foregoing, Consultant's attention is directed to
41 CFR Section 60-250, et seq., and the clause therein entitled
"Affirmative Action Obligations of Contractors and Subcontractors for
Disabled Veterans and Veterans of the Vietnam Era" which, by this
reference, is incorporated herein.
C. Consultant certifies that segregated facilities including, but not limited
to, washrooms, work areas and locker rooms, are not and will not be
maintained or provided for Consultant's employees on the basis of race,
color, religion or national origin. Where applicable, Consultant shall
obtain similar certification from any of its subcontractors, vendors or
suppliers performing work under this Agreement.
D. Consultant is aware of, and is fully informed of, Consultant's
responsibilities under the Rehabilitation Act of 1973 and, where
applicable, shall comply with the provisions of the Act and the regulations
promulgated thereunder unless exempted therefrom.
Without limitation of the foregoing, Consultant's attention is directed to
41 CFR, Section 60-741 and the clause entitled "Affirmative Action
Obligations of Contractors and Subcontractors for Handicapped Workers"
which, by this reference, is incorporated herein.
SCHEDULE 3
REPRESENTATIONS, CERTIFICATIONS AND ACKNOWLEDGMENTS
For Ball Paid Consultants Regarding
"Xxxx Amendment Disclosure and Certification Requirements"
1. As a paid consultant under Contract to Ball Corporation, I certify that I
have been provided, have read, and will comply with the disclosure
(reporting) requirements set forth in Federal Acquisition Regulations (FAR)
Subpart 3.8 entitled, "Limitation on the Payment of Funds to Influence
Federal Transactions."
2. If I engage in any activities that are required to be disclosed by FAR
Subpart 3.8, I will report such activities no less frequently than quarterly
during the term of my Consultant Contract with Ball.
3. I certify that on or after December 23, 1989 I ____ have made or _____ have
not made any communication to or appearance before an officer or employee of
an agency, a Member of Congress, an officer of employee of Congress or an
employee of a Member of Congress in connection with and with the intention,
or attempt, to influence the award, extension, continuation, renewal,
amendment, or modification of any Federal Contract to Ball Corporation.
NOTE: If you marked your certification as X have made..." then complete
and return an OBM Standard Form LLL, "Disclosure of Lobbying Activities" and
specifically identify the amount of costs that you invoiced, and were
reimbursed by Ball, for performing those reportable activities.
4. I acknowledge that these certifications are a material representation of
fact upon which reliance was placed when the below identified related
transaction was made or entered into.
The foregoing representations, certifications, and acknowledgments are hereby
made by the undersigned.
Company Name Cygnus Enterprise Development LLC
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Company Address X.X. Xxx 0000, Xxxxxx, XX 00000
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Signed /s/Xxxxxxx X. Xxxxx
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Print Name Xxxxxxx X. Xxxxx
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Title Managing Partner Date January 9, 1997
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Related Transaction: (Identify RFP, Award, Amendment, Consultant Agreement,
Subcontract, etc., by number, title and date.)
SCHEDULE 4
COMPENSATION AND PERIOD OF PERFORMANCE
4.1 Period of Performance
The period of performance shall begin on January 1, 1997, and shall continue
until terminated by either Consultant or Ball.
4.2 Compensation
For consulting services as agreed upon by the parties and for services as
Chairman of the Board of EarthWatch, Member of the Board of Datum and Consulting
to Ball Corporation. A basic retainer of $3,500 per month (annualized equal to
$42,000 per year) is proposed to cover the following levels of effort. Effort
will be billed quarterly.
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Task Level of Effort
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1. C of B of EarthWatch 6 board meetings per year
1 day per meeting, which covers
preparation
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2. Datum 4 board meetings per year
2 days per meeting, which covers
preparation
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3. Ball Corp Consulting 1 day per month
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Times in excess of the levels identified above must be authorized ahead of time
by the Ball CFO and will be billed at $1,500 per day for activities as Chairman
of the Board of EarthWatch and $1,200 per day for Datum Board membership and
Ball consulting assignments.
Air travel will be at coach rates. Rental cars will be at mid-size equivalent
rates. Other expenses will be invoiced on an incurred basis. Personal car travel
will be invoiced at the most recent approved IRS mileage rate.
(Potential) - The Forty Year Chronicle of BATC project may be approved by Ball
Corporation but has not been to date. If it is later approved, the effort will
be coordinated and negotiated with activities planned in the Ball Corporation
Corporate Relations Department and, through it, BATC Public Relations
Department. It is recognized that there may be a need to fund outside
consultants, administrative support and effort to publish the book and that it
is possible that the cost for this task could approach $100K per year and take
two years to complete.
SCHEDULE 5
BALL SUPPLIED EQUIPMENT & SERVICES
The following equipment and services are requested for the conduct of the
consulting services as agreed to from time to time by the parties.
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Item Description
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Computer Off-site use of Lap Top Computer with
Docking Station, Monitor and Tape Back-up
presently located in my office
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Software Use of the latest releases of Microsoft
Office
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Fax Machine Off-site use of Hewlett Packard fax
machine presently located in my office
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Officing Office space to be made available when on
assignment at corporate facilities
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